9911796707
TMI Blog2003 (1) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... laimed that the product was correctly assessable in Heading 9404.29 and proposed to recover duty short levied. Another notice was issued on 8-12-2000 relating to goods imported by the applicant and not cleared. This notice too proposed classification in Heading 9404.29, proposed confiscation of the goods pending clearance under Clause (m) of Section 111, recovery of duty on goods cleared between June 1997 to July, 2000 invoking the extended period contained in sub-section (1) of Section 28 of the Act and proposed penalty on the importer. In the order impugned in this appeal, the Commissioner has adjudicated on all the notices. He has confirmed the classification of the goods in Heading 9404.29. He has held that the extended period invoked in the notice last referred to cannot be applied and dropped the demand for Rs. 17.92 crores approx. He has demanded duty short levied of Rs. 16.03 crores approx. on goods imported between March and July, 2000; he has confirmed the classification under Heading 9404.29 with regard to goods provisionally assessed and cleared and asked for recovery of Rs. 6.46 crores as a consequence. It is necessary to record before proceeding to record and deal wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct is specially designed to work on magneto-therapy principles improving the natural healing ability of the human body. The magnetic field attracts and repels charged particles in the blood, creating movement and heat and in the process causing blood vessels to dilate, increasing circulation, accelerating the natural healing process. The accupressure nodules/protuberances trigger the release of endorphins, which releases the muscles, dispels fatigue and dissolves tensions/stress. The finger-like protuberances provide a deep tissue massage to the body reducing muscular tension thereby rejuvenating the body. The said product imparts massage and chiropractic or manual pressure effects to the body as well as magnetic treatment effects, thereby preventing or curing a host of ailments. The benefits obtained by using the said product and the manner in which it operates are clearly set out in the catalogue of Japan Life. 2. There is no description of the pillow and the quilt. 3. Heading 9019.10 of the Customs Tariff of this heading reads as follows. 9019.10 - Mechano-therapy appliances; massage apparatus; psychological aptitude-testing apparatus. 4. The exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alore is relied upon. 7. It is not necessary for us to ponder to any great extent upon the magnetic properties of the mattress. None of the recognised text or Western European system of medicine finds that any benefit is obtained by the proximity of the person suffering the illness to the magnet to the arrangement of the magnet. No text scientific literature or evidence is produced by the appellant in support of the claim. It is, we agree, perhaps within the bounds of possibility that such magnets may have therapeutic effect on human body or on illness or on the disorder to which the human body is subject. Research in future may perhaps establish such an effect. No such research establishing the effectiveness of such a system has been brought to our notice. But even on the assumption that such is the case, it does not help the appellant. The appellant s claim is for classification of the goods as massage apparatus. It is not the appellant s claim that the present of magnet results in massage. Massage is defined in the Medical Dictionary by Stedman (page 925 in the 25th edition) as a method of manipulation of the body, by pinching, kneading tapping etc. Thereafter there is refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the massage that is carried out by any part of the body must originate from outside the part of the body. However, the movement by itself of a body or a part of the body cannot itself be massage. We thus cannot conceive that a person walking on the road is being massaged on the soles of his feet because they are subjected to manipulation by coming into contact with the road surface or that a swimmer is being massaged by the action upon his body of the water in which he swims. Therefore the claim that because a person using these mattresses turns around more frequently than he would otherwise, the mattress performs massage upon his body cannot be accepted. If this were accepted, it would follow that a person walking on the road, swimming, or using a typewriter or has his feet, body and finger tips respectively massaged by his activity. In fact, to extend this logic would mean that every surface upon which a person sleeps provides massage to that person. It is common knowledge that all persons except those who are unable to do so due to serious medical conditions, constantly shift their sitting or sleeping position. Therefore if the activity performed by the mattress in question resu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been further examined in Board for appropriate classification of subject goods. 2. The imported goods comprise of a magnetic mattress, magnetic pillow and magnetic quilt variously described as medical devices/medical appliances; magnetic treatment mechanism; magnetic mattress; accupressure appliances , etc. The goods are stated to help in treating certain ailments of the human body by providing magnetic treatment while at the same time producing appropriate chiropractic or manual pressure effects as well as magnetic treatment effects. Such goods have been declared as magnetic accupressure treatment instruments for customs purposes. The goods essentially comprise of an elastic body of crosslinked foamed polyethylene/urethane, etc. having protruberances on its surface with a damper felt lined with permanent magnets secured to the surface of the elastic body. 3. Mattress is specifically covered under Customs Tariff heading 94.04 as articles of bedding . The HS Explanatory notes to this heading states that the heading covers, Articles of bedding and similar furnishing which are sprung or stuffed or internally fitted with any material or of cellular rubber or plastics . It a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect on tissues liable to necrosis, will also be classifiable as massage apparatus . Hence, massage apparatus may also be in the form of a mattress and the imported goods appear to fulfil the HS explanatory notes to the heading. 5. Similar goods manufactured by a local manufacturer were also inspected. The goods are described as magnetic health sleeping pad/mattress, magnetic health cervical Pillow, magnetic health back rest/ seat/cushion/calf rest, etc. A perusal of the technical literature/catalogue indicated the following. 6. The goods are designed to work on magneto therapy principles improving the natural healing ability of the human body: The magnetic field attracts and repels charged particles in the blood, creating movement and heat and in the process causing blood vessels to dilate, increasing circulation, accelerating the natural healing process; the magnetic field also creates a slight electric current and this electric current stimulates the nervous system triggering a blockage of pain sensations: The Accupressure nubs/nodules/protuberances trigger the release of endorphins which relaxes the muscles; dispels fatigue; dissolve tension/stress: The finger like proj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... magnetic and accupressure properties shows that the board circular covers the goods under consideration. 15. We are compelled to reject as entirely incorrect and unsubstantiated the classification that the Board has determined. The classification is based upon the so-called scientific theory of magnetism the validity of which claim we have earlier been unable to accept. We have already gone into some detail earlier in our order to conclude that even on the assumption that as a result of the more frequent movement induced in a sleeper lying on a mattress as a result of its construction and its superficial structure bedsores are prevented and those already existing are cured, the mattress would not be a massage apparatus. At the same time, however we are mindful that the circular of the Board of such a nature are binding upon its officers. The Courts have emphasised uniformity in classification and even a circular that is palpably wrong is nevertheless binding upon the officers. 16. We also heard arguments as to whether a circular of this kind issued by the Board would be applicable to goods already cleared. The appellant contends that in the absence of any other earlier circular ..... 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